Lawyers and Gators

A man walked into a bar with his alligator and asked the bartender, “Do you serve lawyers here?

“Sure do,” replied the bartender.

“Good,” said the man. “Give me a beer, and I’ll have a lawyer for my gator.”

Rumored to be courtroom testimony

Attorney: Did you check for his blood pressure?

Doctor: No

Attorney: So, then is it possible that the patient was alive when you began the autopsy?

Doctor: No

Attorney: How can you be sure doctor?

Doctor: Because his brain was sitting on my desk in a jar

Attorney: But could the patient have still been alive nevertheless?

Doctor: It is possible that he could have been alive and practicing law somewhere

Litigation Holds and Lessons Learned

Bow Tie Law’s Blog recently had an interesting piece on litigation holds titled “The Holding Pattern: Lessons Learned on Litigation Holds” where insufficient notices or notices crated in bad faith can jeopardize a case because of the possibility of spoliation of ESI.

I have run across this same problem with past customers that didn’t take the litigation hold responsibility seriously. I worked with a customer whose litigation hold process was to send an email out to all 40,000 employees in 60 different countries telling them to stop deleting emails with specific content.

There was no consideration given to employees in other countries being able to read and understand English nor any follow up to make sure they had understood and acknowledge their responsibility. The GC’s opinion was: “I’ve let the employees know; now it’s their problem”. Obviously that doesn’t fly now.

So what is an easier, less risky way of applying litigation holds? The most straight forward way is to do it centrally and not rely on employees to understand and do it properly. A centrally managed ESI archive gives the legal department the ability to find the potentially responsive ESI and apply a litigation hold within minutes. This will also greatly reduce your risk of spoliation.

This also means all responsive ESI is available to be searched and placed on litigation hold. So you don’t have to hope employees understand and react properly to your litigation hold request…you simply do it centrally.

Manual Litigation Holds are Risky

In the case Pinstripe, Inc. v. Manpower, Inc., 2009 WL 2252131 (N.D. Okla. July 29, 2009), the defendant ran afoul of the litigation hold requirement by relying on a manual form of placing litigation holds, e.g. send litigation hold notices out to affected custodians.

The risk in this process is that 1. you have to send the notice out to all potentially affected custodians and 2. you have to be sure they read and understand the notice.

Many companies lose litigation before it really starts because they can’t effectively stop deletions of potentially responsive ESI.

The only way to insure you can stop ESI deletions when the litigation hold requirement is triggered is to take the management of ESI away from the individual custodians and centrally control it via an archive that captures and secures everything for some period of time.

With this strategy, the ESI can be managed and secured centrally which also allows for instantaneous placement of litigations holds on all potentially responsive ESI.

The key here is to use an ESI archiving system that captures a full ESI data set meaning for example not just email messages but also their attachments, calendar entries, task lists, contacts and attributes.

Also, for those of you that have SharePoint systems, be aware that SharePoint manages many more data type than just a record or document. Make sure you can capture and hold anything the eDiscovery request could ask for in a given ESI system.